After explaining how the Supreme Court had first given prisoners habeas rights in June 2004, taking the unprecedented step of granting habeas rights to prisoners seized in wartime because the Bush administration had attempted to strip them of all rights, holding them in a legal black hole that prevented them from appealing to anyone at all if they claimed they had been seized by mistake, Scott and I discussed how the Supreme Court’s ruling was necessary because the men had largely been rounded up not “on the battlefield,” as the Bush administration claimed, but had, in fact, been handed over — or sold — to US forces by their Afghan and Pakistani allies, at a time when bounty payments, averaging $5,000 a head, were widespread, and also how they were never screened on capture, and given Article 5 competent tribunals to ascertain whether they had been seized by mistake.

Part of the Geneva Conventions, these were held close to the time and place of capture, and were designed to separate combatants from civilians caught up in the fog of war in the cases of men seized in wartime who were not part of a regular army, but although they had been used by the US military in every war from Vietnam onwards (and had led to nearly three-quarters of 1,200 prisoners seized in Iraq being released, because they had been seized by mistake), the Bush administration prevented the military from implementing them in Afghanistan. Predictably, this contributed enormously to the filling of Guantánamo with innocent men, but an even sadder truth is how difficult it has been to explain this, in the face of the obstinate and enduring appeal of the Bush administration’s unsubstantiated claim that those held in Guantánamo were “the worst of the worst.”

Scott and I spun off from this into discussing how torture was then introduced in an effort to extract “actionable intelligence” from prisoners who, for the most part, knew nothing but were regarded as having been trained to resist interrogation by al-Qaeda, and the overlooked importance of being able to recruit informers (as in the case of Mohamedou Ould Salahi, mentioned above), which is all but impossible when a torture program replaces the rapport-building, criminal prosecutions and witness protection programs favored by the FBI.

There was much more in the show. Scott asked me to recap the story of Ibn al-Shaykh al-Libi, who was sent by the CIA to Egypt, where he produced a false claim about connections between al-Qaeda and Saddam Hussein that was used to justify the invasion of Iraq, and who was then sent back to Libya, where, last May, he conveniently died just three days before the US embassy reopened.

Andy Worthington, author of The Guantánamo Files, discusses his website’s “Guantánamo Habeas Week” event that seeks to draw attention to government torture and lawlessness, the difficult-to-determine ratio of evil/incompetence at work in the Bush administration, the arbitrary roundup of “terrorists” in Afghanistan and Pakistan following the embarrassing bin Laden Tora Bora escape, the current score card of Guantánamo Habeas hearings, scaremongering Republican politicians and the end of Congressional oversight and checks and balances.